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In re Mercedes-Benz Anti-Trust Litigation

January 6, 2005

IN RE MERCEDES-BENZ ANTI-TRUST LITIGATION.


The opinion of the court was delivered by: Walls, District Judge.

OPINION

Plaintiffs move to strike the affidavits of Anthony P. LaSpada and R. Craig Romaine filed in support of defendants' motion for partial summary judgment. The motion is decided without oral argument pursuant to Fed.R.Civ.P. 78.

The facts of the case are outlined in a number of previous opinions and will not be restated here. In response to defendants' motion for partial summary judgment, plaintiffs filed a motion to strike the affidavits of Anthony P. LaSpada and R. Craig Romaine that were submitted in support of defendants' motion. LaSpada is the Associate General Counsel and Assistant Secretary for MBUSA, LLC, the entity formerly known as MBUSA. In his affidavit, he testifies to the ownership of MBUSA, LLC and its predecessor entities and the relationship between MBUSA, LLC and MBCC. Romaine is an expert in economics. In his affidavit, he explores the possibility that any alleged overcharge would be passed on to lessees. Plaintiffs object to such affidavits on the ground that MBUSA never disclosed the identity of such persons or that these persons had knowledge concerning the issues in defendants' summary judgment motion. Plaintiffs argue that MBUSA was obligated to disclose the identities of such persons without awaiting a discovery request under Rule 26(a) and that when plaintiffs posed interrogatories to MBUSA that asked for such information, MBUSA again failed to disclose the information.

Plaintiffs rely on Fed.R.Civ.P. 37(c)(1) which provides that "[a] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Rule 26(a) lists the types of discovery that a party must provide to other parties in the case:

(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:

(A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information; ...

With respect to expert discovery, Rule 26 also addresses the disclosure of expert evidence:

(2) Disclosure of Expert Testimony.

(A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

(C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1).

Fed.R.Civ.P. 26(a)(2) (emphasis added). Rule 26(e)(1) and (2) addresses a party's duty to supplement disclosures:

(e) Supplementation of Disclosures and Responses. A party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances:

(1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due.

(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

Because Rule 37(c)(1) applies to disclosures required under Rule 26(a), (e)(1) and (2), Rule 37(c)(1) can be used to preclude a party from using evidence that it either should have disclosed as an initial disclosure, as expert testimony, or as part of a supplemental disclosure.

During the discovery period, plaintiffs served on MBUSA plaintiffs' second set of interrogatories. Interrogatories no. 11-13 requested that MBUSA set forth all facts supporting its position in the summary judgment motion:

Interrogatory No. 11

Set forth all facts which support your position that some or all lessees of new Mercedes-Benz vehicles (a) are not, or might not be, "direct purchasers" of Mercedes-Benz vehicles under Illinois Brick, and/or ...


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